Scott Greenfield and “Why Judges Won’t Condemn Cops”

At bottom, I like to think this blog is about legal realism.  That’s why I want everyone who reads this damn thing to go over to Simple Justice and read Scott’s post “Judicial Incentives: Why Judges Won’t Condemn Cops.

Because I have always believed that I could handle the truth, Greenfield’s post makes yours truly very, very itchy. Maybe Col. Jessep was right, at least about me.

What do you think about the post? Let Scott or me know. And, “no” I have not conspired with Scott on this matter. I leave conspiracies to right-leaning academics and drug dealers.


PS. Scott features Professor Will Baude’s take on lying cops. Guess where brother Baude teaches? Guess who received an undergraduate degree in Mathematics with a Specialization in Economics?  The foregoing said, and as Scott makes clear, you don’t have to buy into the “law and economics” stuff to accept Scott’s point.

We are the scriveners

MuesBalancedNebraska has a peculiar beauty. This place is infused with such extremes of wind, weather, drought, flood, geology, geography and the constant threat of hardship that the beauty can quickly turn painful.

Although he graduated from the University in Lincoln, I first got to know Wes Mues when he and I attended Kearney State College long ago. Wes was a beautiful person. Not only was he outwardly attractive, but there was a genuine warmth about him that pulled people to him. Look at the photo at that top of this page. See what I mean? You could not help loving Wes.

Following college, I got to know Wes much better after we both enrolled as first year law students. During the following three years, we became buddies. He really shined in law school. After we graduated (Wes “with distinction”), we found ourselves together again. We became extremely close friends when he clerked for federal district judges “Dick” Dier and “Duke” Schatz and I clerked for Don Ross, a federal circuit judge. Both chambers were in Omaha, and, when Judge Dier died unexpectedly, Wes came to work with Judge Ross until Judge Schatz was confirmed.

We both left clerking at about the same time to enter the real world. We both ended up a few miles apart in central Nebraska where the Sandhill and Whooping cranes come in the icy-cold spring. I think we both returned to the sticks because we wanted to become real lawyers, whatever that meant to us at the time.

Wes began to practice with a preeminent trial lawyer in Kearney by the name of Jim Knapp. Wes and I later learned and laughed about the fact that Knapp had offered each of us the same job when he only had room for one of us. In addition to being a truly great trial lawyer, Jim was an outsized character.

I went into practice in Lexington, about 45 miles to the west. I was drawn to Lexington by Ed Cook, Judge Ross’ brother-in-law. Ed’s followed his father who followed his father into the practice of law in Lexington. The firm was founded in 1884. Ed is the best lawyer and person I have ever known. But, I digress.

Over the years, Wes and I bumped into each other in our respective practices. Once, entirely on a technicality (I was good on technicalities), I bested Wes in a suit about an airplane that got burned up in a hangar. That was the only time.

On another occasion,  I got into a tussle with a first-year associate in Wes’ firm. The kid did something to really annoy me (I can’t remember what that was), so I called Wes to complain. I told Wes the young man was an “asshole.” Wes replied that I was entirely and unquestionably correct.  But then Wes added, “He’s our asshole, so get over it.” I laughed so hard I forgot about being angry.

Another time, Wes agreed to become the “first-chair” lawyer in a federal diversity case that was too big and complex for our little three-person firm to handle alone. We were representing a retired farmer whose brain was nearly but not entirely destroyed in an accident caused by the driver of an errant semi-truck and trailer. Due largely to Wes, we settled that case for what was then the largest insurance payout in Nebraska’s history. The day-in-the-life video of our client that Wes put together, showing the poor fellow at the asylum calling for his mother as big tears rolled down his weather-beaten face, was the most powerful evidence that I have ever seen.

In 1984, I got myself into a load of trouble. Earlier, I had agreed to become special counsel to the Nebraska legislature, and that matter unexpectedly resulted in my appointment as a special assistant attorney general to try the impeachment of Nebraska’s Attorney General, Paul Douglas. Douglas was liked by all (he once offered me a job) and members of the Republican party absolutely adored him. Except to say that the matter involved the Attorney General’s personal business dealings with a failed financial institution, the facts aren’t important in this context. That said, the impeachment was a very big deal in Nebraska. For background, see Terrance DeWald, An Evaluation of Nebraska’s Impeachment Standard–State v. Douglas, 29 Creighton Law Review 358 (1986).

Under the Nebraska Constitution, we had only ten days to prepare. Worse, the legislative staff that provided me with support was ready and willing but didn’t know the difference between a deposition and a donut.  Since Nebraska has a one-house legislature, the trial was before the Nebraska Supreme Court. To make matters more difficult, the court had previously decided that an impeachment trial was “criminal” in nature even though the only “sentence” that could be imposed was expulsion from office. That meant the “proof beyond a reasonable doubt” standard applied. It also meant that we could not call Mr. Douglas as a witness.

Needing help desperately, I telephoned Wes and asked him to try the case with me. Now, slow down, dear reader, this is important: Wes should have turned me down because to do otherwise seriously risked his promising career, but he didn’t. All I remember is Wes quickly saying something like, “Of course. See you in the morning.” By the way, Wes was a Democrat and I was a Republican, but neither one of us were particularly active in politics.

The next day, Wes drove the 135 miles or so from Kearney to Lincoln and we began to get ready. Following feverish preparation day and night for the short time remaining to us, we soon found ourselves trying the case before the Nebraska Supreme Court. A public television camera broadcast the trial live to a statewide audience and the New York Times reported the story.

Our main assertion was that Douglas had an ethical duty not to misrepresent facts involving his conduct but that he had done so. Four of the seven judges found we had proven that count beyond a reasonable doubt. However, a majority was not good enough. The Nebraska Constitution required a super-majority of five to convict. As a result, Douglas was found not guilty of the articles of impeachment.

As I look back, both Wes and I were toughened yet chastened by the experience–for two lawyers, in our late thirties, that was a pearl of great price. In any event, after the trial, we packed up, drove west and returned to our respective lives and practices.

Ultimately, we both ended up as judges. I became a United States Magistrate Judge in 1987 and then a United States District Judge in 1992. Incidentally, Bill Morrow, the extremely smart, tough and gruff lawyer who successfully defended Mr. Douglas went out of his way to help me with that appointment.

In 1994, Wes was appointed as a judge on the Nebraska Court of Appeals. I was tickled to speak at his investiture in the breathtaking former Senate chambers of the Nebraska State Capitol building. That was a day of joy. Oddly enough, I don’t think Wes and I exchanged more than a few words. After the doings, I rushed back to the office to attend to something or the other. I desperately wish I had paid more attention to the moment but that time has passed me by.

Like the back of my hand, the intersection, near Highway 81 and I-80 at Grand Island, is familiar to me. I have eaten stale cookies, consumed horrible coffee and filled up my car with gas there uncounted times. So had Wes. But it was at that place, not far from where the prairie schooners used to navigate the tall grass, that Wes died in a car wreck.  On October 25, 1999, after 51 years, 173 days, Wes was gone.

I was asked to speak at his funeral, and I agreed. I showed up. But, to tell the truth, I didn’t actually speak. All I did was read a poem, and then I sat down. Figuratively, I am going to do the same thing now. There is nothing more that I can say.Here is that poem:

We Are The Scriveners

I have not seen [him] in forty years.
[He] . . . lies in one of those midwestern
farm cemeteries where
no one remembers for long, because everyone
leaves for the cities. [He] was young, with freckles
and a wide generous mouth, a good [boy] to have
loved for a lifetime but the world
always chooses otherwise, or we ourselves
in blindness. I would not remember so clearly save that here
by a prairie slough sprinkled with the leaves of autumn
the drying mud on the shore shows the imprint
of southbound birds. I am too old to travel,
but I suddenly realize how a man in Sumer
half the world and millennia away
saw the same imprint and thought
there is a way of saying upon clay, fire-hardened,
there is a way of saying
a way of saying
“where are you?” across the centuries
a way of saying
“forgive me”
a way of saying
“We were young. I remember, and this, this clay
imprinted with the feet of birds
will reach you somewhere
if it take eternity to answer.”
There were men
like this in Sumer, or who wept among the
autumn papyrus leaves in Egypt.
We are the scriveners who with pain
outlasted our bodies.

From an anthology of poetry written by Loren Eiseley, entitled Another Kind of Autumn  (1977). I made slight changes to better fit the poem to the occasion.

Born in Lincoln, Nebraska, and first educated at the University of Nebraska where he received degrees in both English and Anthropology, Loren Eiseley (September 3, 1907 – July 9, 1977) was a world-renowned anthropologist and a writer of unsurpassed talent. He taught and published essays, poetry and books from the 1940s through the 1970s. During this period he received more than 36 honorary degrees and was a fellow of many distinguished professional societies including the Association for the Advancement of Science, the National Academy of Sciences, the National Institute of Arts and Letters and the American Philosophical Society. At his death, he was the Benjamin Franklin Professor of Anthropology and History of Science at the University of Pennsylvania. For more, visit the Loren Eiseley Society here.


*For a terrific bit of writing by a lawyer who met Wes once when the lawyer was a young man waiting tables, see here.

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